International Law Scholarship: More or Less Relevant?

by Peter Spiro

Adam Liptak’s column yesterday on the relevance of legal scholarship (note that TimesSelect material is now available to anyone with an .edu email address – how long before they wave the white flag on this undertaking?) has predictably generated follow-ons in the legal blogosphere. Jack Balkin does an excellent job putting the story in context, including the context of a world with blogs. I’m mostly with Eugene Volokh in believing that legal scholarship surely has value beyond impact on the courts. As law scholars come increasingly to identify themselves as academics, they are probably more interested in getting cited by other scholars (perhaps especially by scholars in other disciplines) than by judges. One might also note that the transmission belt of ideas can obscure the theory-based origins of policy applications. Some theoretical work by academics can get translated by think-tank types and other academics for delivery to decisionmakers, who themselves won’t necessarily be aware of the geneaology.

But the question for this venue would be: is IL scholarship more or less relevant than in other legal fields? Leaving aside the doctrinal twist of article 38 of the Statute of the ICJ, and the fact that you can’t usefully put Lexis to work here, I think the answer at one time was, clearly less, at least with respect to IL scholarship out of US law schools.

Today, I’d have to think it is, clearly more, for two reasons. One is the clean-slate nature of so much that is going on today on the international legal landscape. Questions of institutional design and foundational premises inevitably empower academics, who are trained to work with the big picture. Scholarly work, even quite theoretical scholarly work, has more potential to orient the policymakers in that context (compare that context to one involving some well-plowed doctrine of constitutional law).

Second, because international law has been the subject of so much less judicial refinement scholarly work tends to fill the void (hence the place of commentary as a secondary source of the law). I taught international delegations in my foreign relations law course earlier today. No cases to work with, so it was Curt Bradley’s article on the subject and a collection of think pieces from one of the Duke gatherings on the subject. Better stuff, frankly, than what one would typically get from the courts.

5 Responses

One twist on Peter’s subtle comment on IL scholarship. IL scholarship is fun in the same sense as literature is fun: it makes up stuff out of thin air.Most rules of IL are invented by IL professors. For example, the rules on use of force change depending on whether or not the IL law establishment likes the U.S. administration: humanitarian interventionism under Clinton, but strict noninterventionism under Bush, and so forth. We can get away with this because the RULE OF RECOGNITION (in Hart’s sense) in international law is indeterminate. There is no constitution of international law, no real sense of legitimacy, democratic or otherwise. We don’t really know what the rules are, so we make them up. Peter is right: the stuff we write is better than what the courts do, because we are freer. Whether that is a good or a bad thing, I leave to the reader (see Somin’s and McGinnis’s brilliant piece in the Stanford L. Rev. on the “lawyercracy”, or whatever they call it, the idea that the legal elite, and not the people, or the government, should decide what IL rules US courts should apply, et). My personal preference is to go back to Grotius: IL is, really, natural law. If you are a natural lawyer, at least you can make moral arguments. What average law professors do is concoct fake doctrinal arguments. For my money, philosophy is far better, more intellectually honest, even if inconclusive.

3.20.2007
at 11:53 pm EST Fernando Teson

I wholeheartedly disagree with Professor Teson as to the (democratic) legitimacy of international law, but that is a rather large, perhaps interminable debate, and at any rate I’ve not the stomach (literally and figuratively) for it at the moment, so permit me to simply speak to the question of indeterminacy: for whatever degree of indeterminacy afflicts international law (and I think we should concede that indeterminacy is a matter of degree), I don’t find such indeterminacy fatal or debilitating but more on the order of a legal virtue akin to the ‘open texture’ of many concepts, allowing for the flexibility that makes law applicable to different times and places while maintaining its integrity and coherence as law (i.e., all the formal attributes we associate with a well-functioning legal system). In any case, natural law propositions are by nature far more indeterminate than international law or rules hence, for instance, no less than Aquinas speaks of deductions from natural law’s permanent principles and precepts as well as the process of determinatio to determine the content of positive laws (in the latter case, there’s a range of possible laws that will fit the bill [see John Finnis on this]): there’s no good reason international law professors cannot have a say in such a process, in which case it is hardly making stuff up out of thin air as it were (and the jus cogens nature of the inalienable core of human rights is best understood in natural law terms). What is more, one need not have a ‘written’ constitution (as in the U.K.; and if I’m not mistaken, Ernst-Ulrich Petersmann has explained how this is in fact the case) to speak of there being a constitution or constitutional order in an Aristotelian sense on the international plane.

Finally, I would think international lawyers do not want to make moral arguments in the first instance, but rather legal arguments that have a moral backdrop or cogency insofar as they are never entirely, solely, or utterly ‘positive’ in the sense that, in principle or theory, reference can always be made to the manner in which they are linked to moral values and principles, that is, if need be (e.g. when there’s a question of a law’s pertinence to the common good or its relation to in/justice). The virtue of natural law is that it allows, indeed, insists on the difference between moral arguments and legal propositions without at the same time severing the connection between them or conflating (as Professor Teson appears to do here) the moral and the legal. And it may be the case, as it is with Aquinas and Finnis, that natural law itself is dependent on principles of practical reasoning that identify (self-evident) ‘pre-moral’ goods necessary for human survival and flourishing (cf. Martha Nussbaum’s ‘central human capabilities’). And as to natural law, we might just as well go back to the Stoics or Aquinas, or forward to Finnis: in other words, why Grotius? To be sure, Nussbaum proffers reasons for beginning with Grotius in her Frontiers of Justice (2006), so I’ll assume Professor Teson has something like those in mind in his preference for the rather formidable Dutch jurist (and philosopher, playwright, and poet). Of course what frightens many about any talk of ‘natural law’ is the belief that it necessarily involves exclusivist metaphysical propositions and commitments that leave some worldviews out in the cold, so to speak. I happen to think this need not be the case, but that’s an argument for another day.

3.21.2007
at 2:29 am EST Patrick S. O'Donnell

Re: Hart’s rule of recognition: one might wonder why there need be one rule of recognition and not several; also, Hart understood this secondary rule to include the condition of general obedience to the system’s valid rules by citizens, in our case, states, and I think this condition is met by the international legal system. And is it not the case that we more or less know the means, can ascertain the rules by which to identify, interpret and modify the ‘primary rules’ and norms of the international legal system (a pedigree test)? There are conditions of validity even if, on occasion, there’s uncertainty as to which legal rule applies in a given circumstance (this occurs in domestic legal systems as well, even if there is a clear hierarchy of legal determination and thus subordination). Finally, recall that for Hart the rule of recognition was a ‘luxury’ and ‘not a necessity':

‘It is, therefore, a mistake to suppose that a basic rule or rule of recognition is a generally necessary condition of the existence of rules of obligation or “binding” rules. This is not a necessity, but a luxury, found in advanced social systems whose members not merely come to accept separate rules piecemeal, but are committed to the acceptance in advance of general classes of rule, marked out by general criteria of validity [the ‘sources’ of international law amount to rules of recognition]. In the simpler form of society we must wait and see whether a rule gets accepted as a rule or not; in a system with a basic rule of recognition we can say before a rule is actually made, that it will be valid if it conforms to the requirements of the rule of recognition.’

I see little trouble in envisaging the international society of states as an instance of such a ‘simpler form of society,’ as ‘this does not mean that there is some question about the rules or their binding force of validity that is left unexplained.’ Of course I have not discussed the differences this makes for viewing the law as either on the order of an institutional ‘system’ or as a ‘process’….

My comments are inspired by if not utterly beholden to Friedrich V. Kratochwil’s Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (1989).

3.21.2007
at 9:15 am EST Patrick S. O'Donnell

One last thing (I hope): the founding figures of international law could certainly be seen as part of a ‘legal elite,’ the only difference being that they were (looking back) successful in persuading the powers-that-be whereas the same cannot–as of yet–be said of their contemporary counterparts owing in part to the radically different presuppositions and assumptions that exists among them….

3.21.2007
at 9:55 am EST Patrick S. O'Donnell

One does get the sense that IL is taken seriously so long as the law-breaker in question is disliked by the legal community (which, to indulge in no great generalization, is somewhat to the left of the body politic as a whole) and less seriously when he is well-liked and his actions in accord with their world view.

Were George Bush to blow up a factory in a random african country that turned out to be merely a civilian building, timing the incident so as to distract from the ongoing US Attorney scandal… well, the gnashing of teeth would be something to behold.

This is something of a result of the relative scarcity of trials on such matters. When it is obvious that the case will never have to be argued in a court of law, it becomes a lot easier to hurl accusations of criminal acts. The accusors risk little, as there’s virtually no chance their target would ever be charged, to give him a chance of vindication and acquittal.

3.23.2007
at 12:32 pm EST Matthew Gross

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